Chief Justice speaks out

PM - Friday, 5 October , 2007 18:24:45

Reporter: Simon Santow

MARK COLVIN: The Chief Justice of Australia's High Court has launched a spirited defence of his fellow judges.

Murray Gleeson used a speech to his judicial colleagues in Sydney this afternoon to call for more resources from state and federal governments.

He also says there's a growing trend for politicians to intrude into the area of common law, previously the sole domain of judges.

Simon Santow reports.

SIMON SANTOW: Now the Chief Justice of the High Court, and before that the most senior judge of the New South Wales Supreme Court, Murray Gleeson was in a reflective, and at times playful mood as he spoke on some of the most pressing legal issues to a room full of fellow judges in Sydney this afternoon.

MURRAY GLEESON: A year from now I will have become unfit for office by reason of age. And it used to be said, of some elderly judges, by way of condescension and disparagement, that whatever legal knowledge they had they owed to the fact that anyone who regularly makes the same journey for long enough will become acquainted with some of the scenery on the way.

Having been a Chief Justice for 19 years, I've become acquainted with some of the scenery on the legal landscape, and I want to take this opportunity to record how those features appear to me before I forget what they are.

(Sound of laughter)

Murray Gleeson got straight into a criticism often levelled at the courts.

MURRAY GLEESON: Almost all of us and almost everywhere the administration of justice has been associated with complaints of delay, which can be both a form and a cause of injustice.

SIMON SANTOW: He warned against the community expecting instantaneous justice, but conceded the time taken to try individuals had blown out dramatically in less than a century.

Forty years ago, he said, a long trial was one that lasted two days. Now, after two days, counsel are just getting warmed up.

MURRAY GLEESON: A judge who allows lawyers to negotiate for settlement, even if he or she sits in chambers while that's going on, may be far more productive than a judge who forces the parties on and ends up producing an appeal.

SIMON SANTOW: The Chief Justice then laid some blame at the feet of governments for neglecting their responsibility to provide courts with adequate resources, before also criticising state governments for neglecting the buildings from which justice is administered.

MURRAY GLEESON: When I come to the matter of the cost of justice, of course cost and delay are connected. And the modern practice of time charging by lawyers reinforces that connection.

Compared to the amounts that governments spent on other activities, the cost of maintaining the justice system appears to me to be modest. It's said that there are no votes in courts, and that's certainly true enough when the system's working smoothly. But unacceptable inefficiency and delay, or patent inadequacy of facilities might have political consequences.

SIMON SANTOW: Murray Gleeson spoke out too about politicians straying into areas previously left to the common law. He cited as an example, governments which legislate to control sentencing - decisions previously left to the discretion of judges. But the Chief Justice said American-style excesses have largely been avoided in Australia.

Judges are often criticised by community members and politicians as being out of touch and remote to the lives of everyday Australians.

So here's Murray Gleeson's defence.

MURRAY GLEESON: It's the legislative branch of government that's elected, and that encourages an assumption the judicial power somehow lacks legitimacy. The phrase "unelected judges" is often deployed, not to make the point that judges are free from the pressures of the political contest, but to suggest that their authority is in some way illegitimate.

The freedom of judges from political constraints, which ought to be welcomed, because it sustains their impartiality, is sometimes a source of frustration. But impartiality isn't a matter of degree.

Words like "accountability" come trippingly off the tongue, but the conditions that have to exist for judges to be and appear to be free to administer justice according to law are inconsistent with some forms of external control appropriate to other kinds of authority.